Alan Dershowitz Should Expand His Case Against the ICC

February 1, 2015

By Shawn Macomber

So the International Criminal Court has allowed the amorphous, sort-of-a-State of Palestine join its ranks, thereby establishing a pretext for an investigation into possible war crimes committed by the Israeli Defense Forces during the Gaza conflict last summer, and Alan Dershowitz is roughly as happy about the decision as one would expect a man who counts titles such as The Case for Israel (2004), The Case Against Israel’s Enemies (2008), and a host of other unambiguously pro-Israel tomes to be.

First the celebrated author, civil-liberties lawyer, and retired Harvard Law professor went on Newsmax TV to declare the decision would “mark the death of the ICC” — wishful thinking at best, alas — and then followed that broadside up a few days later with a pugilistic Jerusalem Post op-ed in which he argued the ICC had sacrificed legitimacy for too-easy politicized grandstanding for the following reasons:

Palestine is not a state:

“How can an entity become a state, for purposes of joining the ICC, without boundaries? The assumption seems to be that the pre-June 1967 armistice lines now constitute the de jure, if not the de facto, boundaries of the Palestinian state, despite the reality that even the Palestinian Authority seems to understand that there will never be a return to those artificial boundaries…These practical problems simply illustrate the difficulties of recognizing a ‘state’ that has no agreed upon boundaries and whose ultimate borders will be shifting in the future if peace is to be achieved. It is not even clear whether the Palestinian state currently encompasses the Gaza Strip, which has not been contiguous with the West Bank since the UN proposed the division of what remained of British Mandatory Palestine after the creation of Jordan. Gaza is now under the de facto control of Hamas, which is widely regarded as a terrorist group lacking any semblance of legality or any commitment to the rule of law. Would leaders of the PA in the West Bank be held legally culpable for the terrorist acts of Hamas, even though they have no control over what occurs in Gaza? Would Hamas military commanders be held accountable even if they refuse to recognize the authority of ICC over them?”

This is not a pursuit of justice, but a new weapon in a ongoing — sometimes hot, sometimes cold — war:

[I]t is a weapon because it seeks to create a false moral equivalence between a vibrant democracy that is governed by the rule of law and a loose assortment of groups – Fatah, Hamas, Islamic Jihad, and others – that do not accept the results of elections, that murder dissenters with no semblance of due process, and that allow their official media organs to incite violence against civilians based on their religion. It also seeks to create a false moral equivalence between an army that seeks to defend its civilians from rocket attacks, suicide bombers and terror tunnels and a terrorist group that murders civilians in their beds, kidnaps and kill children and targets civilians from behind human shields.

The endorsement of a terrorist group is not traditionally viewed as the hallmark of a positive step forward in international relations:

“It is telling that Hamas has expressed satisfaction with the decision of the ICC to open an investigation of Israel’s military action during the recent war in Gaza. The hypocrisy of a terrorist group that boasts of its multiple war crimes expressing satisfaction that the victim of these war crimes is being investigated for trying to stop rocket and tunnel attacks should be evident to any reasonable person.”

Trouble is, the ICC is manifestly not a “reasonable person” — it is an rent-seeking entity in pursuit of a brand of unquestionable transnational power obtainable only by currying favor with the sort of self-styled cosmopolitan globalists who dress up a pathological desire for cultural hegemony and political control with Fellowship-of-Man rhetoric that rarely lands in the neighborhood of true principle — never mind actual justice — selectively prosecuting (or, more frequently, not) based on the whims of its benefactors.

And since Israel is the preferred punching bag for many of the institutions, nations, and individuals the ICC hopes to either empower its mission or beckon under its auspices, it is entirely predictable that the Jewish state — despite possessing precisely the self-regulating judicial infrastructure that according to the Rome statute is supposed to supersede ICC jurisdiction — would find itself on the wrong end of an investigation. Meanwhile, the uncontrollable gangsters (charitably speaking) who haphazardly fire rockets into Israeli civilian neighborhoods from Gaza are permitted to sit back and give the proceeding a golf clap.

The fix, in other words, is in.

Nevertheless, though Dershowitz once labeled the ICC “largely a sham when it comes to Israel and other democracies under attack” in a 2009 Huffington Post piece, he simultaneously offered his qualified support for the court’s mission, praising then-Chief Prosecutor Luis Moreno-Ocampo as a man possessing “a sterling reputation for objective law enforcement and basic fairness” and implicitly validating ICC’s pretensions and ambitions as part and parcel of his appeal on behalf of Israel:

Were it now to open an investigation of Israel, ICC would be violating the cardinal principle that must govern all international prosecutions. Namely, that the worst must come first.

Of course, to presume such a maxim would be heeded is to misunderstand the arbitrary nature of power and the complex, dangerous hero complexes it spins off in its wake.

So Dershowitz is free to continue to register his protests —

No country in the history of the world facing threats comparable to Israel has ever responded with more compliance with the rule of law, more concern for the life of civilians, and more warnings to civilians…

There is no country in the world with a legal system that is more responsive to claims made by victims of war crimes. At the apex of the Israeli legal system is its Supreme Court, which is widely admired by lawyers around the world…

To now reward [Palestinian] intransigence with unilateral recognition is both immoral and not conducive to a negotiated peace…

— but, to paraphrase a somewhat popular pseudo-intellectual phrase in vogue a decade ago, one man’s intransigent is another man’s blameless plaintiff and Dershowitz argues his case to a jury that will remain largely unwilling to accept any judgment of the Israeli Supreme Court until the day passes it down a decision ordering the Jews to throw themselves into the sea.

As a self-described “liberal Democrat” it must be tempting for Dershowitz to believe the ICC should be reformed and not scuttled; to believe what is happening to Israel is a bug and not a function of the Court. The truth is, however, it is a foundationally illiberal institution and the Jewish state is a canary in the coal mine.

Mr. Dershowitz’ stalwart and passionate defense of Israel is admirable, but it is time he expand his case against the ICC.

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